A federal appeals court on Tuesday threw out the conviction of Salim Ahmed Hamdan, a former driver for Osama bin Laden who served a prison term for material support for terrorism.
In a 3-0 ruling, the appeals court said that material support for terrorism was not a war crime under international law at the time Hamdan engaged in the activity for which he was convicted.
Hamdan was sentenced to 5 1/2 years, given credit for time served and is back home in Yemen, reportedly working as a taxi driver.
"If the government wanted to charge Hamdan with aiding and abetting terrorism or some other war crime that was sufficiently rooted in the international law of war at the time of Hamdan's conduct, it should have done so," wrote Judge Brett Kavanaugh of the U.S. Circuit Court of Appeals for the District of Columbia. All three judges on the case were appointed by Republican presidents.
The war crime for which Hamdan was convicted was specified in the Military Commissions Act of 2006.
"The government suggests that at the time of Hamdan's conduct from 1996 to 2001, material support for terrorism violated the law of war referenced" in U.S. law, said Kavanaugh, but "we conclude otherwise."
To date, the cases against seven Guantanamo Bay prisoners under the military commission system in place at Guantanamo Bay military base have involved material support for terrorism. In five of the cases, those charged pleaded guilty. Hamdan went to trial, as did Ali Hamza al-Bahlul, who helped al-Qaeda produce propaganda and handled media relations for bin Laden. Bahlul was convicted in November 2008 of multiple counts of conspiracy, solicitation to commit murder and providing material support for terrorism, and is serving a life sentence at Guantanamo.
"It is highly likely that the result of this decision in Hamdan will be to vacate the convictions of Bahlul," said Hofstra University constitutional law professor Eric M. Freedman. "Even the conspiracy and solicitation to commit murder counts are very probably headed toward reversal."
The decision casts doubt on the commissions' ability to try those in custody at Guantanamo who are charged under the Military Commissions Act of 2006, said Navy Cmdr. Walter Ruiz. He is defending Mustafa Ahmed Adam al-Hawsawi, a prisoner charged with conspiracy to commit terrorism, conspiracy and other crimes for his alleged role in the Sept. 11 attacks. Ruiz said Hawsawi's alleged conduct occurred in the narrow window of April 2001-September 2001, outside the boundary of the 2006 law.
Justice Department spokesman Dean Boyd said the department is reviewing the ruling.